COURT FILE NO.: CRIMJ(F)704/10

DATE: 2012 06 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Park, for the Crown

• and -

THI THUY DOAN and

HUY LOI NGUYEN

J. Giuliana, for Ms. Doan

J. Park, for Mr. Nguyen

Defendant

HEARD: May 23 and 24, 2012

REASONS FOR JUDGMENT

Hill J.

INTRODUCTION

[1] The accused pled not guilty to charges of production of marihuana, possession of marihuana for the purpose of trafficking, and theft of electricity. It is alleged that the accused were in control of cultivation of marihuana in a residence in Mississauga.

[2] The trial proceeded in a blended fashion with the prosecution calling four police witnesses who were questioned not only as to the merits of the case but also regarding various alleged Charter violations. The defence called no evidence.

[3] There is no dispute between the parties that on September 11, 2009, a marihuana grow operation (a “grow-op”) existed in a two-storey detached home located at 838 Genovese Place in Mississauga and that a hydro bypass had been unlawfully installed within the dwelling in connection with the cultivation operation. During the execution of a Controlled Drugs and Substances Act (C.D.S.A.) search warrant on September 11, 2009, the accused arrived by vehicle and parked in the driveway of the home. They were almost immediately arrested outside the dwelling. There was no prior investigative information linking the accused to the criminality within the residence nor was any evidence found in the subsequent search of the residence itself to connect the accused to the grow-op.

[4] The prosecution’s case is circumstantial. Important to the Crown’s proof against Ms. Doan was a brief pre-arrest statement made to a police officer and the attendant circumstances as well as the discovery, after her arrest, of a key in her purse which could open the front door of the dwelling. Important to the case against Mr. Nguyen was a remote device in the vehicle he had parked in the house’s driveway capable of opening one of the garage doors of the dwelling. Asserting breaches of their s. 8, 9, 10(a) and 10(b) Charter rights, the accused seek to have these aspects of the evidence excluded as unconstitutionally obtained.

FACTUAL BACKGROUND

Prior to the Search

[5] On September 7, 2009, Peel Regional Police Service (P.R.P.S.) Constable Holland received information from a “neighbour” of the 838 Genovese Place residence. The tipster was previously unknown to the police and wished to remain anonymous. The neighbour reported a suspicion that no one was in permanent residence at the dwelling. For about a period of two years, “people” came to the house, for a short time only, either early in the day or late at night and stayed only a short period of time. The constable had no information about the number of persons who had been to the residence or their race and gender. A green van had been observed multiple times at the subject dwelling. The constable agreed that “multiple” could have been only twice. The officer was unaware of the make, manufacture or year of the van. The van always reversed into the garage with the garage door then being closed immediately. These people had no interaction with other neighbours and garbage was rarely left out for pick up.

[6] On the basis of this information, and from his prior experience investigating grow-op cases, Constable Holland believed the reported activity to be consistent with the existence of a marihuana cultivation operation at the Genovese Place dwelling. He provided his information to Constable Carroll who drafted a C.D.S.A. search warrant application. The warrant issued on September 11, 2009. Further static police surveillance on the residence was undertaken for about 45 minutes on that date prior to entry to the house to execute the warrant. During this period, no persons or vehicles were observed at the residence.

[7] The search team of six officers of the P.R.P.S. Morality Bureau drove onto Genovese Place. They had five or six unmarked police vehicles which parked at the curb in front of 838 Genovese Place and to the west of the residence. Most of the search party were dressed in cargo pants, boots, shirts, and bullet-proof vests with police insignia, and full duty equipment belts.

[8] At the time of entry between 8:14 and 8:15 p.m. through the front door of the dwelling using a battering ram, the police had no knowledge of the accused.

Inside the Dwelling

[9] The search team quickly “cleared” the residence finding that there were no occupants. There was an odour of fresh marihuana in the home, a strong vegetative smell which was most pronounced in the basement.

[10] In the unfinished basement, there was a fully operational marihuana grow-op with mature growing plants ready to harvest as well as high intensity lights, fans, water, ventilation tubing, chemicals, and a hydro bypass. The basement in particular had overbearing humidity.

[11] Two thirds to three quarters of the second-storey floor was devoted to cultivation activity with seedlings and smaller plants. On that floor, there were lights, ventilation tubing, tubs, chemicals and heavy white plastic covering the windows. One room on this floor was furnished as a bedroom including a TV and a bed. In what was described as the master bathroom there was a calendar and a “grow chart” on the wall.

[12] On the main floor of the residence, there was no evidence or material relating to the grow-op. To outward appearances, this floor seemed to be normal, lived-in accommodation. In the livingroom, there were furnishings including seating, a TV and stereo equipment. On this floor, there was a small shrine of sorts and a computer on a table. There were appliances and dishes in the kitchen and some food items visible.

[13] Over the course of a number of hours, the grow-op was dismantled, seizures were made and photographs were taken. Constable Rerrie acted as the exhibits officer. In all, 787 marihuana plants were seized with a projected yield of 44,072 grams. Using 2011 Greater Toronto area “street prices”, the value of the seized marihuana was estimated to range from $196,750.00 if sold at pound-level to $881,440.00 if sold at the gram-level. The parties agreed that whoever was in control of the grow-op would be in possession of marihuana for the purposes of trafficking.

Arrival of the Accused

[14] Only minutes into the search, Constable Krause exited the front door of the residence in order to obtain an exhibit box from his vehicle. It was dusk. As he stepped out, he observed a green Nissan Pathfinder vehicle being driven eastbound on Genovese Place. The SUV slowed, pulled across the roadway and reversed into the driveway of 838 Genovese Place parking close to the front of the east garage door. The constable gave this evidence:

Q. …when you first saw the vehicle arrive and pull into the driveway, it was your intention to arrest the two individuals?

A. Correct.

[15] On the officer’s evidence, as he took a few more steps and stopped to watch, he observed Ms. Doan exit the passenger side of the vehicle, walk around the front and then stop at the open driver’s door to speak to the male driver, Mr. Nguyen. Her back was to the constable. He was unable to see if anything was exchanged between the two of them. In the officer’s view, there could be no mistaking that he was a police officer. However, he had yet to be seen by the accused. Constable Krause testified that at this point he did not consider Ms. Doan to be an “innocent bystander” – she was “a potential suspect”.

[16] Ms. Doan remained at the driver’s door for four or five seconds before turning to walk toward the front door of the house with her head down. Constable Krause informed the court that after a few steps, the accused looked up, saw him and then immediately turned and walked toward the street not to the SUV. Mr. Nguyen, who had stayed in the vehicle, closed the driver’s door.

Ms. Doan is Detained

[17] As Ms. Doan walked quicker than a casual walk toward the street, Constable Krause followed her and, in a loud and assertive voice, told her to “stop”. On the officer’s evidence, he “ordered her to stop”. In his view, she was not free to leave. He intended to arrest her. When the accused did not comply with his first command, he repeated the “demand” one or more times until the accused stopped and turned toward him. By this point, he had closed to within ten to twelve feet of the accused. She was standing on the street and he was positioned on the lower driveway or the street side of the sidewalk.

[18] The accused stopped and walked back toward the officer. He could see that she had no weapons. He took two or three steps back and to the west in order to keep a sight-line on both accused. He could not see what Mr. Nguyen might be doing in the vehicle. He did not know how many occupants might be in the Pathfinder. He wanted to arrest Doan and the driver. He decided to talk and keep things “smooth” until back-up arrived from the house. As the accused was walking back to within three to five feet of his position, in an apparently agitated frame of mind on her part, this exchange occurred:

Doan: What, what, why you call at me?

Krause: Where are you going?

Doan: I’m going home.

Krause: Where were you going?

Doan: Home.

Krause: I just saw you get out of this vehicle (points to SUV) and walk toward this house (points at dwelling).

Doan: No, he just drive me. I no live there. I never go there.

[19] According to the officer, Ms. Doan spoke in a louder than normal volume of voice. She seemed irritated and defensive, and spoke to him as though he was bothering her and shouldn’t be asking her questions. It was apparent that the accused’s English language fluency was limited.

[20] Constable Krause agreed in cross-examination that he did not inform the accused why he had “ordered” her to stop and that his questioning had moved from being general to being focused.

[21] Constable Krause expressed the view that a police officer can detain a person without giving them a reason provided the detention is brief. In his view, an arrest can sometimes be an effective way to investigate crime. In cross-examination, the constable agreed that prior to September 11, 2009 Ms. Doan may never have previously attended the property:

Q. As far as you know, this could have been the very first time that Ms. Doan was in attendance at that target residence, right?

A. It may have been.

Q. Yes?

A. It may have been. I don’t know.

Q. To be fair, at the time of Ms. Doan’s arrest, you really could not have know whether she was there to participate in the grow[-op] that you found in there or whether she was there for some legitimate reason, right?

A. I guess we’ll never know.

[22] In this case, Constable Krause gave no thought to further investigating Ms. Doan prior to her arrest by detaining her briefly to get her identification, residence address, date of birth, or to perform CPIC or vehicle registration checks.

[23] On the officer’s evidence, by the end of his exchange with Ms. Doan, the rest of his team had filed out of the residence where he quickly briefed them, including Constables Rerrie and Holland, as to what had occurred including that at least one male party was in the SUV. On Krause’s evidence, he gave no directions to arrest the two accused.

Ms. Doan’s Arrest is Completed

[24] According to Constable Krause, from the time Ms. Doan exited the SUV until her arrest was only twenty to thirty seconds.

[25] Constable Rerrie testified that when he exited the residence, he observed Constable Krause out front with Ms. Doan. He saw a SUV in the driveway. He learned from Krause that the vehicle arrived, the female got out, saw him and walked away.

[26] Constable Rerrie informed the court that after speaking with Krause for about thirty seconds he arrested Ms. Doan because he had reasonable grounds to do so. There was a marihuana grow-op in the house. The vehicle had backed into the driveway. When he visits a friend, he parks at the curb, not in the driveway. Therefore, in his view, most people who come for a visit don’t do that – they park on the street. Because Ms. Doan came to the front and then walked away from Constable Krause it could be inferred that “she knows there is something in there”.

[27] Constable Rerrie gave no thought to simply detaining Ms. Doan to investigate further, for example by obtaining personal information from her or running CPIC and vehicle inquiries.

[28] Constable Carroll, the affiant for the C.D.S.A. search warrant, who assembled and provided the investigative facts in the information to obtain the warrant, saw no connection of the two accused to the grow-op other than their presence outside the house.

[29] Constable Rerrie completed the arrest of Ms. Doan. On his evidence, he alone escorted her into the house. Constable Krause testified that he and Constable Rerrie took her inside to the livingroom. Constable Rerrie read the accused her rights to counsel and caution in English. It soon became evident that her English was “limited and weak”. As a result, he turned her over to Constable Krause. On more than one occasion in his evidence, Constable Krause stated that he then provided Ms. Doan her right to counsel and caution. Only in response to a leading question from Crown counsel, did the witness state that he gave Ms. Doan the reasons for her arrest.

[30] Four or five minutes after her arrest, Constable Krause produced to the arrestee a single sheet of paper with a Peel Regional Police crest and text in a foreign language distributed beneath three English language headings – Right to Counsel, Caution to Charged Person, Secondary Caution to Charged Person. Although the document does not, in English, identify the foreign language, Constable Krause testified that he believed the foreign language text to be Vietnamese. However, he does not speak or read that language. The constable believed that the document provided the reasons for the accused’s arrest. On the document there is other typed English language in parenthesis in two places (Possession for Purpose) and (Produce of Marijuana). In that area of the form is additional handwriting stating “Theft of Electricity”.

[31] Constable Krause testified that he attempted to explain to Ms. Doan in English what each section of the document meant as it was passed back and forth between them as he allowed Ms. Doan to read each section of the document. He recorded her answers such as “Yes”, “Ya” (x4), “No”, and “Yes, I understand”, beside his short form of “DYU” (Do You Understand?) at seven places on the document.

[32] On the officer’s evidence, he then dated the document (2009-09-11 @ 2020 hrs.) and he and the accused both signed.

[33] Constable Krause informed the court that he was of the opinion that the language on the document was “very similar” to the English text of what Constable Rerrie read to the accused in English. He “assumed” the text was in the same order as the English language rights conventionally communicated. Constable Krause was questioned in cross-examination regarding the document which he believed contained the right to counsel and cautions:

Q. So you don’t know for sure if it’s in the same order?

A. That’s correct.

Asked about the final aspect of the s. 10(b) right to counsel communication, the officer gave this evidence:

Q. What is the last question you normally ask where you’ve administering the right to counsel sir?

A. I believe it is the secondary caution.

The constable then stated that “probably” two or three lines earlier than the secondary caution there was a question as to whether the arrestee wanted to speak to counsel.

[34] Constable Krause did not know if the accused was literate. He did not verify that she was able to read the document. Although he expected that if Ms. Doan had difficulty understanding she would ask him questions in English, the officer recognized that it would “definitely” be a problem if she was unable to formulate appropriate questions in English. While the officer believed that Ms. Doan expressed that she did not want to contact a lawyer, he agreed that she later did access counsel from the police facility.

Mr. Nguyen is Arrested

[35] The moment the SUV reversed into the driveway, Constable Krause formed the opinion that Mr. Nguyen should be arrested. In cross-examination, the officer gave this evidence:

Q. … at the time that he was arrested, there was nothing connecting Mr. Nguyen to the address other than the fact that he had pulled up and driven into the driveway?

A That’s correct.

Q. And at the time of his arrest, you didn’t know whether Mr. Nguyen was actually involved or in what capacity he was involved in the marihuana grow operation, right?

A. Correct.

[36] Constable Holland testified that after the house was cleared he decided to move his vehicle from where he had left it on the street so that traffic flow would not be impeded. As he arrived at the front of the house, he heard Constable Krause yell, “People are here”. When he exited the residence he was unsure where the other team members were. He saw Ms. Doan interacting with Constable Krause outside a vehicle which had reversed into the driveway with the engine off. There was a male party in the driver’s seat with the door closed.

[37] At one point in his testimony, Constable Holland stated that he “immediately” ran to the SUV, opened the driver’s door, identified himself as a police officer and advised the driver he was under arrest at 8:19 p.m. believing he was “involved” in the grow-op. He was unaware whether Ms. Doan was then being arrested. He considered that he had the grounds to arrest based upon the dwelling being a grow-op house, the arrival of the accused in the green vehicle reversed into the driveway suggesting a prior attendance, and that two persons were present consistent with tending a grow-op which can be more than a one-person job. In cross-examination as to the significance of the green vehicle in relation to the information the constable had earlier received from a neighbour, the officer agreed that the Pathfinder was a sport utility vehicle not a van and that there was no information as to when the van seen by the informant had last been seen at the residence. In cross-examination, Constable Holland further agreed that when the SUV arrived it was not late at night. Constable Krause understood that the arrest was for production of marihuana, “possession for the purpose of marihuana” and theft of electricity.

[38] Constable Holland testified that he gave no thought to holding off the arrest until he had checked Nguyen’s identification, date of birth, vehicle plate registration or CPIC history.

[39] On Constable Holland’s evidence, nothing was discovered when he searched Mr. Nguyen. He took Mr. Nguyen into the residence and attempted in English to give him his s. 10(b) Charter rights and caution. It became clear that the arrestee’s English was limited. Mr. Nguyen communicated that his language was Vietnamese. He turned Mr. Nguyen over to Constable Krause.

[40] Constable Krause testified that he “would have” had a conversation in English with Mr. Nguyen before following the same format he had with Ms. Doan using a document which he believed to contain a statement of rights in the Vietnamese language. He told the accused he was under arrest for three offences. Constable Krause did not know if the accused was literate. He recorded responses of Mr. Nguyen as “Ya”, “Yes” (x4), “No”, and “Yes, no problem”. The document was then dated (2009-09-11 @ 2031 hrs.) and signed by himself and Mr. Nguyen. On September 11, 2009, as far as Constable Krause knew, Mr. Nguyen’s only connection to the grow-op was that he had driven a vehicle into the driveway. Constable Holland testified that he again spoke to Mr. Nguyen after Constable Krause dealt with the accused and confirmed that he understood what he had been told and that he wished to speak to a lawyer.

The House Key; The Garage Door Opener

[41] Initially, in his in-chief evidence, Constable Krause said nothing about what Ms. Doan was doing as she had her head down walking toward him and the front of the house. Subsequently, again in his in-chief testimony, the witness stated that he thinks her hands were at the time “at her purse”. In cross-examination, Constable Krause testified that as Ms. Doan returned from the street after his order to stop, he could see that she had nothing in her hands. The officer made no written note of Ms. Doan having a purse in her hand or looking into a purse. Constable Rerrie testified that he had no note or recall of Ms. Doan having anything such as a purse in her hands when he arrested her (“it wasn’t on her”). On the constable’s evidence, he did not search Ms. Doan’s person after her arrest but did search her purse incident to arrest finding a key on a keyring which fit the front door of the residence. Constable Rerrie took a photograph (Exhibit #9) of that key in the front door lock. Constable Krause had no note of the accused having a purse on her person and did not give that evidence at the preliminary inquiry. He had no idea what happened to the key after it was seized.

[42] Constable Carroll testified that he alone was assigned, almost immediately after the arrest, to clear the SUV and to search the vehicle driven by Mr. Nguyen incident to his arrest. After searching for people, weapons or drugs and finding nothing “of interest”, the search incident to arrest was complete. He could not recall if a purse was in the vehicle. Among the photos taken by Constable Rerrie was one showing a remote garage door opener clipped on to each front seat visor and another with both openers side-by-side on one of the seats. According to Constable Rerrie, he took the photos as there were two garage door openers and they were apparently different makes. He did not test the openers and was unaware whether any other officer did. Constable Carroll testified that a short time after the search of the SUV incident to arrest was over, he returned to the vehicle and used one of the remotes to open one of the garage doors because, on his evidence, it was easier to take the dismantling equipment through the garage than the breached front door. After the search of the residence was over, he used the remote again to close the garage door behind the SUV. He made no note of these events because he considered the garage door opener to have no evidentiary significance. He had no idea what happed to the vehicle or its contents. The officer made no reference to the opener in his notes and made no disclosure relating to its use when this case was first scheduled for trial. According to Constable Carroll, in a pre-trial interview only days before this trial commenced, when asked if he had used one of the openers, he first disclosed that he had.

Implementation of Right to Counsel

[43] Over an hour after the accused were arrested, they had the opportunity to speak to someone in their own language. Constable Martino transported Ms. Doan and Mr. Nguyen from the scene of their arrest to P.R.P.S. 11 Division where they were put in contact with Vietnamese-speaking duty counsel, Tony Nguyen, a name he received from Constable Holland. Ms. Doan spoke with duty counsel at approximately 9:27 p.m. and Mr. Nguyen spoke with duty counsel at 9:34 p.m. on September 11, 2009.

ANALYSIS

The Charter Issues

Section 9

The Defence Position

[44] On behalf of Ms. Doan, Mr. Giuliana argued that the accused was first detained when she submitted to Constable Krause’s repeated orders to stop. The uniformed officer intended to arrest the accused, followed her a short distance and caused her to remain at the scene. In these circumstances, Ms. Doan, it is said, was effectively psychologically detained in both a subjective and objective sense.

[45] It was submitted that assuming Constable Krause subjectively believed he had reason to detain Ms. Doan respecting involvement in the residential grow-op, there existed no objective basis for that belief. The detention was therefore unlawful and arbitrary. Ms. Doan was unknown to the investigators. In the few minutes of searching the house, prior to her arrival outside, nothing was located to connect her to the grow-op. Her attendance in the driveway was consistent with innocent conduct.

[46] In the alternative, it was argued that if the detention imposed by Constable Krause could be said to have justified a properly grounded investigative detention based upon reasonable suspicion, the detention effected here was not used here for investigative purposes as Krause, from the outset, initiated an arrest. Intending, from the point of the vehicle’s entry to the driveway, to arrest Doan, her initial detention was a prelude to physical arrest as the intention to arrest existed throughout with the delay to completion of the arrest only on account of the officer awaiting back-up to effect the physical aspect of her apprehension.

[47] Mr. Giuliana submitted that Constable Krause’s view that an arrest of a suspect is a useful way to investigate crime reflects his lack of understanding of the seriousness of an arrest and the need for reasonable grounds.

[48] It was further argued that Constable Rerrie’s act of arresting Ms. Doan also amounted to a breach of her s. 9 Charter right. Objectively, based on his evidence, there were no reasonable grounds to arrest. Even if reasonable suspicion could be said to have existed, the officer moved immediately to arrest without taking reasonable investigative steps to elevate suspicion to reasonable grounds for arrest.

[49] In Mr. Nguyen’s case, Ms. Park submitted that her client was detained once Constable Holland opened the door of the SUV and told him he was under arrest.

[50] At that point, it was argued, there was no objective validity to the subjective grounds articulated by the constable for effecting an arrest. On his evidence, the officer, without any briefing from Krause, immediately moved to arrest. He did not see Ms. Doan exit the SUV and was unaware of her connection to Mr. Nguyen or indeed whether she was being arrested. Mr. Nguyen was unknown to the officer. While he was in a green-coloured vehicle in the driveway of a grow-op location, that mere presence did not connote commission of the production crime. Constable Holland’s purported link of the vehicle in the driveway to the information provided by a neighbour was tenuous given that the vehicle was a sport utility vehicle not a van, it was neither early morning nor late at night, the vehicle did not back into the garage, the driver was making no attempt to conceal his presence or identity, and it was unknown when in the prior two years a green van last attended the residence.

[51] The rush to arrest, as opposed to a brief investigative detention, amounted to an arbitrary detention.

[52] Neither accused submitted in light of their appearance of Vietnamese ethnicity, and the apparent fortuitous on-scene possession by the police of a “rights” document purporting to be in the Vietnamese language, that the officers engaged in racial profiling as an undisclosed aspect of their grounds for arresting the two accused.

Position of the Crown

[53] On behalf of the prosecution, Mr. Park submitted that Ms. Doan was not detained until she was arrested by Constable Rerrie. Constable Krause did not detain the accused. She ignored his “stop” utterances until she voluntarily chose to return to his position where she confidently confronted him on her own terms. She was in control. In these circumstances, there was no psychological restraint.

[54] In the alternative, if Constable Krause detained the accused, it was brief, only twenty to thirty seconds, to avoid a pursuit or escalation of the situation until a lawful physical arrest could be completed. The brief detention, in effect the commencement of the arrest process subsequently taken over by Constable Rerrie, was supported by reasonable grounds.

[55] In describing the lawfulness of Constable Rerrie’s arrest of Ms. Doan, it was submitted that it was objectively reasonable considering her exit from a vehicle backed into the driveway of a grow-op residence suggesting attendance beyond a mere visit, as well as the accused’s move toward the front door and then evasive action on seeing a police officer.

[56] Turning to Mr. Nguyen, the Crown submitted that his arrest by Constable Holland was supported by reasonable grounds subjectively and objectively. The SUV was reversed into the driveway. The vehicle’s green colour sufficiently resembled the vehicle described by the neighbour to connect it to prior attendances at the residence. Mr. Nguyen drove Doan to the scene – a person positioned to enter the residence.

Analysis

[57] The dispute between the parties in this case turned more on the application of accepted principles than the state of the governing law itself. The overarching principles include the following:

(1) section 9 of the Charter “guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention … from being applied to people without adequate justification”: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1(S.C.C.), at para. 20

(2) the section 9 Charter right protecting against arbitrary detention does not require that the police abstain from pursuing an investigation with a member of the public until they have specific grounds to connect the individual to the commission of a crime: Grant, at para. 38

(3) “detention” occurs where a state agent, by way of physical or psychological restraint, takes away an individual’s choice simply to walk away: Grant, at para. 25

(4) psychological restraint occurs where a person submits or acquiesces in the deprivation of liberty by the direction or demand of a police officer and reasonably believes that the choice to do otherwise does not exist: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 644; Grant, at paras. 25, 28; United States v. Johnson and McGhee (U.S.C.A. 7th Cir, No. 11-2690, May 24/12), at p. 14; United States v. Madden (U.S.C.A., 10th Cir., No. 10-6072, June 19, 2012), at pp. 6-7 (“So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required”)

(5) not every interaction with, or delay by, a police officer will amount to a constitutional detention – in the circumstances, there must be, not a trivial interference, but a situation of significant physical or psychological restraint depriving the individual of a meaningful choice whether or not to cooperate: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; Grant, at paras. 26, 35, 44

(6) the objective nature of the inquiry asks whether, in all the circumstances, the individual would have perceived that he or she had no choice but to comply with the police directive: Grant, at para. 44

(7) “while the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police”: Grant, at para. 32

(8) while “the subjective intentions of the police are not determinative” (Grant, at para. 32), where a police officer specifically orders a person to “stop” intending to detain him or her there will ordinarily be a situation of detention: R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 2, 8, 22

(9) the onus is upon an accused person claiming a s. 9 Charter violation to establish, on a balance of probabilities, the breach of his or her right (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 28), and in discharging that burden the absence of evidence from the accused may, or may not, determine whether the burden is satisfied: Suberu, at para. 28 (“the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application”); Grant, at para. 50 (because “the test is an objective one, this [applicant’s failure to testify] is not fatal to his argument that there was a detention”)

(10) detention is “arbitrary”, in the sense of an unlawful interference with a person’s freedom of choice, where the grounds necessary to effect detention do not exist: Grant, at paras. 53-6

(11) a detention based upon speculation and an absence of objectively articulable grounds offends s. 9 of the Charter

(12) whether assessing the adequacy of grounds of belief for an investigative detention (reasonable suspicion) or for an arrest (reasonable and probable grounds), there must in all the circumstances exist evidence both that the police officer imposing detention held an honest view that the grounds were present and that a person in the position of the officer would have reasonably believed the grounds were present: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1; Mann, at paras. 28-35

(13) the existence of reasonable grounds is essentially a question of fact to be determined on the totality of circumstances (R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.), p. 214) including factoring into the assessment the experience and trained perception of the police officer: R. v. Brown, 2012 ONCA 1569, at para. 13

(14) in a particular case, on any reasonable view of the circumstances, less intrusive means of investigation may be said to have been necessary and appropriate “before resorting to the coercive actions of arrest”: Brown, at paras. 14, 16-19, 23-6

(15) while perhaps relevant to the s. 24(2) Charter analysis, that where the police had grounds to at least investigatively detain (R. v. Dene, 2010 ONCA 796, at paras. 4-6; Brown, at para. 28) they arrested in the absence of reasonable and probable grounds, a Crown submission as to what the police “could have” done, for example investigatively detaining as opposed to arresting, does not assist in evaluating the constitutionality of what the police “actually did (i.e. arrest …)”: R. v. Turpin, 2012 SKCA 50, at paras. 78-80.

[58] On the totality of the evidence, I am satisfied that Ms. Doan was detained from the point that she responded to Constable Krause’s last order to “stop”. Both subjectively and objectively, her action in changing her ongoing progress into the street represented a constrained choice brought about by the conduct of the officer. Although without the benefit of testimony from the accused on the point, on the whole of the evidence, it is most probable that the accused was psychologically detained from this point onward. This conclusion is supported on the evidence including the following factors:

(1) Constable Krause was a police officer outfitted in clothing and gear including a firearm making his status observable to the accused

(2) the officer is a physically large individual – Ms. Doan is a diminutive person in stature and weight

(3) in speaking to Ms. Doan, Constable Krause intended to arrest her – in his view, she was not free to leave

(4) adopting an adversarial approach, in a loud and assertive voice, the constable issued what he agreed was an order or demand for the accused to “stop”

(5) the accused, a visible minority person, had limited English language fluency

(6) the officer followed the accused to within ten to twelve feet of her position, repeating his order until she complied with the demand to stop – she then turned back toward him and remained in his presence.

[59] In the circumstances, what occurred was not preliminary investigative questioning short of detention. Ms. Doan complied with Constable Krause’s coercive direction. Constable Krause assumed control over the accused. A reasonable person in the position of the accused would, in all the circumstances, conclude that she had no real alternative but to comply with the authoritative demand of the officer.

[60] The parties appeared to be in agreement that if the court was to conclude, as it has, that Ms. Doan was detained when she complied with Constable Krause’s last command to stop, that that detention was the commencement of an arrest, a transaction subsequently completed by Constable Rerrie. This is a sound view of the circumstances considering that:

(1) Constable Krause intended to arrest Ms. Doan as soon as he observed the vehicle back into the driveway

(2) he believed he had reasonable grounds to arrest her

(3) in dealing with Ms. Doan, he wanted to draw out completion of the arrest process, buying time, until additional officers came outside the residence

(4) beyond his initial exchange with Ms. Doan, he did not subjectively consider undertaking an investigative detention in order to secure identification from the accused or further question her relating to personal information and the circumstances of her presence at 838 Genovese Place.

[61] On the other hand, because the three questions/statements by Constable Krause (para. 18 above) during the initial detention of the accused could otherwise be characterized as a brief investigative detention, although not so described by the officer, this scenario falls to be considered as well.

[62] On Constable Krause’s description of events, at the point of invoking detention, reasonable suspicion could be said, objectively, to have existed to believe that Ms. Doan was involved in some way in the grow-op discovered in the dwelling considering that:

(1) the residence was predominantly in use as a marihuana cultivation lab considering its contents, the layout of the growing operation, the odour of the marihuana, etc.

(2) the accused came to the property in a vehicle, exited the vehicle, and made an approach toward the front door of the dwelling

(3) on observing a police officer, the accused turned and walked quickly away from the officer’s position

(4) the accused failed to comply with one or more directions to stop.

Accordingly, had Constable Krause subjectively intended to investigatively detain Ms. Doan he would have been justified in doing so.

[63] However, on the officer’s account, he subjectively intended to arrest Ms. Doan from his first sighting of her. He considered Ms. Doan to be “a potential suspect”. In Constable Krause’s view, it was permissible to arrest to further an investigation. At that point in time, reasonable grounds did not, in an objective sense, exist to arrest the accused. Constable Carroll, the ITO informant, and therefore familiar with the background of the investigation, saw no connection between the two accused and the grow-op apart from their arrival at the residence.

[64] After exiting the dwelling where the marihuana grow-op was located, Constable Rerrie believed he had reasonable grounds to arrest Ms. Doan. When he was just visiting a friend, he would park at the curb not in the driveway. Here, the SUV was backed into the driveway. While Constable Rerrie had reasonable suspicion to investigatively detain Ms. Doan respecting the offences discovered in the dwelling he did not, objectively, have reasonable grounds to arrest the accused. As with Constable Krause’s level of knowledge, the accused was unknown to the constable. The reason for her presence outside the residence was unknown. There is no evidence that Constable Krause reported to Rerrie his verbal exchange with Ms. Doan. In all the circumstances, the arrest of Ms. Doan effected by Constable Rerrie was arbitrary as he did not have reasonable grounds for her apprehension.

[65] In respect of Mr. Nguyen, and Constable Krause’s opinion that he was arrestable once he backed the SUV into the driveway, mere presence in a vehicle at that location, objectively, could not amount to reasonable grounds to arrest. On Constable Holland’s evidence, once he exited the residence where he had observed a marihuana grow-op, and without any information from Constable Krause, he immediately ran to the SUV and arrested Mr. Nguyen.

[66] Stripped to its essentials, the reported basis for the officer’s arrest of the accused was the green vehicle in the driveway and the presence of two arrived persons outside the dwelling consistent with a labour force to tend a grow-op. The colour of the vehicle of course told only part of the story as it was unknown whether the information from the neighbour was stale or the number of times the green “van” (not an SUV) had been observed at the dwelling. In addition, the neighbour reported late night attendance by people in a van which always reversed into the garage – on September 11, 2009, a sport utility vehicle attended not late at night and did not reverse into the garage.

[67] The constable made no effort to investigatively detain Mr. Nguyen in order to secure further information or perhaps an inconsistent version of events from one which Ms. Doan might give had she been investigatively detained. Like Constables Krause and Rerrie, there was a rush by Constable Holland to arrest in the absence of reasonable grounds although reasonable suspicion existed for investigative detention.

Section 10(a)

The Defence Position

[68] On behalf of Ms. Doan, it was submitted that Constable Krause breached the accused’s s. 10(a) right to be promptly informed of the reason for her detention. The officer could have quickly discharged his obligation to communicate the reason but apparently chose not to, believing he had no duty to do so pending her physical arrest.

[69] Further, it is not apparent on the evidence that either Constable Rerrie or Constable Krause subsequently explained to the arrestee the reason for her arrest at all or at least in a communication she could comprehend.

[70] It was argued on behalf of Mr. Nguyen that, on balance, it cannot be said that he was promptly, if ever, informed of the reason for his arrest in a manner he could understand.

Position of the Crown

[71] Based on the prosecution’s position that the detention of both accused commenced at the point of their respective arrests, it was submitted that the English-language communications of Constable Rerrie and Holland and Constable Krause’s employ of the rights document adequately, and in a timely way, communicated to the accused the reason for their detention. The Crown did not suggest that any officer safety issue justified a holding-off of communication to the s. 10(a) Charter right.

Analysis

[72] Once a constitutional state of detention is imposed, other “rights subsidiary to detention” are triggered (Grant, at para. 22) protective of the overarching principle against self-incrimination including s. 10(a) of the Charter:

(1) the interests protected by s. 10(a) include (a) sufficient notice to the detainee that he or she knows the reason why he or she may be obliged to submit to the detention, and (b) adequate notice of the reasons for detention to alert a detainee of his or her jeopardy which in turn will inform the choice whether to speak to the police and whether to consult counsel: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28; R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 (S.C.C.), at p. 302; R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424; see also Christie v. Leachinsky, [1947] A.C. 573 (H.L.), at pp. 587, 591

(2) while the police may actively and legitimately persuade a person to speak during a criminal investigation (R. v. Way, 2011 NBCA 92, at para. 52), where detention is imposed to encourage cooperation, the s. 10(a) imperative to “promptly” provide a detainee the reason for detention is triggered – since the right to counsel must be provided immediately at the outset of a detention (Suberu, at paras. 2, 39), a right which can only reasonably be exercised knowing of one’s jeopardy, there necessarily is an immediacy to the obligation of communicating to a detainee the reason(s) for his or her detention: R. v. Perjalian, 2011 BCCA 323, at paras. 21, 27; R. v. Volk, 2010 SKCA 3, at para. 20

(3) where the s. 10(a) right information can be easily and quickly communicated without impediment, there is no reasonable excuse not to do so and failure to do so is not a trivial matter (Nguyen, at paras. 8, 14, 21) – it is “a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest”: Latimer, at para. 28

(4) the ‘without delay’ implication of communication of the s. 10(a) right is that only exceptionally will delay be constitutionally tolerable as in an established instance of officer safety: (R. v. Strilec, 2010 BCCA 198, at para. 33; R. v. Wright, 2010 MBCA 95, at paras. 20-4, 28) or where the individual “produces the situation which makes it practically impossible to inform him or her” (Christie, at p. 588) – this is consistent with s. 29(2)(a) of the Code requiring a police officer to give notice of the reason for an arrest “where it is feasible to do so”

(5) in considering whether there has been a breach of s. 10(a) of the Charter, it is appropriate to look beyond the exact words spoken by a police officer (Latimer, at para. 30) – “it is the substance of what the accused can reasonably be supposed to have understood”: Evans, at para. 35

(6) the s. 10(a) right must be communicated in clear language: (Mann, at para. 21) – depending on the circumstances, a detainee’s language comprehension difficulties may preclude a finding that the right was understood in the absence of the right being communicated through an interpreter: R. v. Ha, 2010 ONCA 433, at paras. 2, 4

(7) “a Charter warning cannot amount to sufficient compliance no matter when and in what circumstances it is read” (R. v. Schmautz, [1990] I S.C.R. 398, at para. 29) – just as waiver of the s. 10(b) Charter right must be informed and clear and unequivocal (R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at paras. 17-21), it has been observed that “[a] person who does not understand his or her right cannot be expected to assert it” and, where there is a positive indication that a detainee may not understand his or her rights as communicated, there is an obligation on the police to make a reasonable effort to explain those rights in order that the detainee can make an informed choice with respect to the exercise of rights: Evans, at paras. 44-6; R. v Devries (2009), 2009 ONCA 477, 244 C.C.C. (3d) 354 (Ont. C.A.), at para. 38; R. v. Kennedy (1995), 1995 CanLII 9863 (NL CA), 103 C.C.C. (3d) 161 (Nfld. & Lab. C.A.), at para. 31

(8) in other words, while “[i]n most cases one can infer from the circumstances that the accused understands what he [or she] has been told” (Evans, at para. 44), and while there may be “no absolute protection against a lack of appreciation of the information conveyed” by a police officer (Kennedy, at para. 30), where there exist “special circumstances” or detectable signs indicating a possible lack of understanding by a detainee of his or her right “such as language difficulties” (R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191), the police cannot simply rely upon a mechanical incantation of a detainee’s rights

(9) in R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.), at p. 148, the court approved this statement from R. v. Michaud, [1986] O.J. No. 163 (Dist. Ct.) (Q.L.), at p. 6:

If the rights are read in English only, and the accused’s or detainee’s knowledge of the English language does not allow sufficient comprehension of the matter, those are “special circumstances” which alert the officer and oblige him to act reasonably in the circumstances.

…accordingly, where a police officer detains a person who has obvious language difficulties, the officer must do what a reasonable person would do in the circumstances which may require the use of an interpreter as soon as one can be made available: Wheatley v. Lodge, [1971] 1 All E.R. 173 (C.C.A.), at paras. 3-12; Van Hout v. Chief Constable of the Royal Ulster Constabulary and Another (28 June 1984), Northern Ireland High Court (QB), at pp. 4-5 - see also: R. v. Liew, 2012 ONSC 1826, at paras. 21-3, 40-1, 82-9; R. v. Barros-DaSilva, 2011 ONSC 4342, at paras. 31-42; R. v. Chodzba, (2009), 89 M.V.R. (5th) 139 (Ont. S.C.), at paras. 5-22; R. v. Nguyen, [2006] O.J. No. 4393 (S.C.J.) (QL), at paras. 42, 56, 65, 70; R. v. Guled, [2005] O.J. No. 1652 (S.C.J.) (QL), at paras. 4-25; R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.)(Q.L.), at pp. 3-4.

[73] Constable Krause did not attempt to promptly give Ms. Doan the reason that he detained her. He acknowledged in his evidence that he was currently of the opinion that a police officer could detain a person briefly without informing of the reason(s) for the detention. That was not the law on September 11, 2009 or the law as it is now. Whether the constable’s detention of Ms. Doan is characterized as the commencement of an arrest (as the court has concluded) or as investigative detention, no effort was made to promptly inform the detainee of the reason she had been detained. Constable Krause breached Ms. Doan’s s. 10(a) Charter right.

[74] Constable Krause’s evidence stating that the time from Ms. Doan’s exit from the SUV until her arrest was only 20 to 30 seconds, and therefore her compliance with his demand to stop until arrest an even shorter time, cannot be accepted. Her detention was clearly much longer. The accused exited the vehicle, walked around the front of the SUV, spoke to Nguyen at the driver’s door, stepped toward the front door of the residence, turned and walked into the street, had a 40 to 50-word exchange with Constable Krause, Krause briefed Rerrie for 30 seconds or so, and Rerrie moved to Ms. Doan’s position to arrest her.

[75] While Constable Rerrie testified that he arrested Ms. Doan, he did not say that he immediately attempted to tell her the reason she had been placed under arrest. On his initial evidence, after he escorted the arrestee inside, he informed her in English of her right to counsel and cautioned her – nothing about an effort to relate the reason for her arrest until he responded to a leading question. Constable Rerrie did not indicate whether he personally attempted to determine, in light of the language difficulties he identified, whether Ms. Doan understood anything of what he said to her. Constable Rerrie too breached Ms. Doan’s s. 10(a) right.

[76] While Constable Holland testified that he arrested Mr. Nguyen, he said nothing about any effort, at the point of arrest, to inform Nguyen of the reason(s) for his arrest.

[77] Apart from timing, it is far from clear that the two accused were at any point substantively advised of the reason(s) for their arrest in a manner they could fully understand. Constable Krause testified that he thought Nguyen had been arrested for “possession for the purpose of marihuana” (not an offence) and production of marihuana. Typed in English on the sheet of paper produced to each arrestee by Constable Krause, was “Produce Marijuana” and “Possession for Purpose” (not an offence as abbreviated). These references on the part of the officer and the sheet make no reference to “trafficking”. In handwriting, in English, the sheets stated “Theft of Electricity” with no apparent typed translation. Even for an individual with full fluency with the English language, it is not clear that the phrases relating to marihuana would convey a general indication of the reason for arrest. For a person with limited comprehension of the English language, these phrases, and the lack of reference to “grow” or “cultivate”, would very likely cause a person only to hear and comprehend “marihuana” which is insufficient compliance with s. 10(a).

[78] While the prosecution maintained that the sheets produced to each accused by Constable Krause and their recorded responses establish that reasons were in fact communicated for their respective arrests, the balance of credible evidence is to the contrary considering that:

(1) with Constable Krause unable to read or understand the Vietnamese language, and assuming he did not only have a rights sheet in the Vietnamese language thereby engaging in anticipatory stereotyping of potential grow-op arrestees, the officer provided no foundation for his belief that the sheet he provided from his binder or briefcase was in the Vietnamese language as opposed to another language such as Burmese, Cambodian-Khmer, Tamil, Urdu, Hakka, et cetera

(2) if the foreign language text was Vietnamese, who purported to do the translation (a peace officer, an unaccredited translator)? – was the translation an accurate translation?

(3) the constable did not know whether either accused was literate or, assuming the text to be in Vietnamese, whether they comprehended the dialect chosen for the sheet

(4) without saying why, Constable Krause only assumed, but was not certain, that the sheet, which was not bilingual (i.e. without English text immediately followed by foreign language text), reproduced the text of cautions and rights in the same order as that in the English text of whatever would be read to an English-speaking arrestee – at trial, no police witness read out the order of the text on the English language card.

Section 10(b)

The Defence Position

[79] Mr. Giuliana submitted that in light of Constable Krause’s detention of Ms. Doan at the front of the residence as the first stage of her arrest, she was entitled to immediate communication of her s. 10(b) Charter right to counsel. This did not occur. Instead, the constable, having already determined that she was to be arrested when he saw the vehicle pull into the driveway, chose to ask questions focusing upon her connection to the residence where the grow-op was located.

[80] It was argued relevant to an asserted pattern of disregard for constitutional rights that apart from non-compliance with s. 10(b) communication duties outside the residence, the evidence also demonstrated the improbability that Ms. Doan was informed of her s. 10(b) right in the residence given the ambiguous circumstances relating to the document in the possession of Constable Krause and its use by that officer.

[81] I understand Ms. Park to also have taken the position that Mr. Nguyen’s s. 10(b) Charter right was breached by failure on the part of the police to communicate his right in a meaningful way which he could fully understand.

Position of the Crown

[82] On behalf of the Crown, Mr. Park submitted that the police duty to communicate the s. 10(b) Charter right arose at the point that each accused was arrested. The duty was discharged by the officers using “best efforts” to effect the communication in circumstances of the limited English-language fluency of the two accused. Although the police efforts may have fallen short, it cannot be said that any evidence was obtained as a result of a s. 10(b) Charter breach.

Analysis

[83] Whether or not the s. 10(b) Charter right of the two accused was breached again depends on evaluation of all the circumstances and the following general principles:

(1) the s. 10(b) right to counsel is intimately concerned with an individual’s right against self-incrimination – a detainee facing significant legal jeopardy is in immediate need of legal advice - the s. 10(b) right allows a detainee to become conversant not only with his or her rights and obligations under the law but also to obtain advice as to how to exercise those rights: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24, 26, 29, 36

(2) the informational and implementation components of the s. 10(b) Charter right arise immediately on detention “whether or not the detention is solely for investigative purposes”: Grant, at para. 58; Suberu, at paras. 2, 37-40

(3) the immediacy of compliance with the s. 10(b) Charter obligations by the police exists “except in urgent or dangerous circumstances”: R. v. Montgomery, 2009 BCCA 41, at para. 33

(4) in terms of the implementation obligation respecting a detained person, the police must provide him or her a reasonable opportunity to exercise the right and refrain from eliciting evidence from the person until he or she has had the benefit of that reasonable opportunity: Sinclair, at para. 27; Evans, at para. 42.

[84] On detaining Ms. Doan as the first phase of her arrest, Const. Krause made no effort to immediately communicate the right to counsel. He elected instead to question the accused. Although Constables Rerrie and Holland communicated the s. 10(b) right, they did so in English. They immediately recognized, however, that special circumstances existed as the arrestee with whom each was dealing had limited English language abilities. It cannot be safely assumed that the accused understood the words “counsel”, “Legal Aid”, “duty counsel”, et cetera. Without an interpreter, it cannot be said that the accused understood the right to counsel in any meaningful way. It was unknown whether the accused were literate. As discussed earlier, the sheets read to the accused by Constable Krause may or may not have included Vietnamese text, or if so, accurate text comprehensible by the accused. It is unclear on the evidence what questions were purportedly set out in the document in Krause’s possession. On balance, the police did not, at the scene of arrest, comply with the informational or implementation aspects of the right to counsel. No valid waiver of the right to counsel existed.

Section 8

The Crown Position

[85] Mr. Park submitted that the warrantless search of Ms. Doan’s purse, and in turn the seizure of the house key, was justified pursuant to a valid search incident to her lawful arrest in order to secure any evidence in relation to the offence(s) for which she had been arrested.

[86] As to the warrantless search/seizure relating to the garage door opener, the Crown submitted that the police actions were constitutionally justified as a search of the vehicle Mr. Nguyen occupied as the driver incident to his lawful arrest.

The Defence Position

[87] Leaving to the side for the moment the defence argument regarding deficiencies in the evidence connecting Ms. Doan to the purse, Mr. Giuliana submitted that because Ms. Doan’s arrest was itself unlawful, any search/seizure purported to be incident to that arrest would in turn be unlawful and in violation of s. 8 of the Charter.

[88] Ms. Park submitted that Constable Carroll’s actions respecting the garage door opener amounted to unauthorized use of private property and not a valid warrantless search/seizure incident to a lawful arrest of Mr. Nguyen.

Analysis

[89] A common law warrantless search incident to arrest is only lawful and in compliance with s. 8 of the Charter where the predicate arrest is itself lawful: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13.

[90] Here, the detention by arrest of each accused was unlawful having been imposed without adequate grounds. In addition, very likely, the non-compliance with s. 10(a) of the Charter and s. 29(2)(b) of the Code also contributes to the unlawfulness of the respective arrests.

[91] Accordingly, any purported searches incident to arrest of the purse said to be in Doan’s possession and the SUV driven by Nguyen were unreasonable searches in violation of s. 8. Constable Carroll’s use of the garage door opener was, in any event, not a search incident to arrest. That search had terminated when the officer, on his own evidence, decided to use the remote to assist in execution of the warrant. With the Crown not disputing standing on the part of Mr. Nguyen, this conduct, in effect a trespass to private property, resulted in knowledge that the opener afforded access to the garage – a warrantless seizure of the remote and this consequential information, and in turn, a breach of s. 8 of the Charter.

Other Charter Breaches

The Defence Position

[92] On behalf of Mr. Nguyen, in support of his s. 24(2) Charter application, Ms. Park submitted that the accused’s s. 7 Charter right to disclosure was breached when the prosecution failed to disclose until the time of trial the police actions regarding the garage door opener. There was no timely disclosure – disclosure occurred two and a half years after the particulars were said to be within the knowledge of the prosecution team, and only days before trial. Implicit in the defence questioning of Constable Carroll, and counsel’s submissions, is that the defence was prejudiced by lost opportunities to question the officer at a preliminary inquiry or to independently test the remote at the grow-op location.

The Crown Position

[93] Crown counsel responded that the lengthy period of non-disclosure was entirely inadvertent and that the defence was not in fact prejudiced.

Analysis

[94] Disclosure by the prosecution relating to use of the garage door opener was an important obligation. The evidence was far from peripheral given the paucity of evidence in particular against Mr. Nguyen. The timeliness of the discharge of the Crown’s disclosure duty relating to this evidence was entirely unsatisfactory and the reason advanced for the delay equally unsatisfactory. As well, the remote appears to have fallen into the category of lost evidence unexaminable and untestable. Be that as it may, the defence did not seek a remedy by way of adjournment or other relief, being content to restrict itself to forensic attack upon the prosecution on these issues through cross-examination. In the result, while perhaps having general relevance to the s. 24(2) analysis respecting other Charter breaches, disclosure concerns relating to the door opener do not amount to a breach of s. 7 of the Charter.

Section 24(2)

The Defence Position

[95] Mr. Giuliana submitted that the court ought to exclude Ms. Doan’s pre-arrest statement, Constable Krause’s observations of her demeanour once detained outside the house, and the key to the front door.

[96] Counsel maintained that the police engaged in serious Charter-infringing misconduct. There were multiple and non-trivial constitutional breaches. The violations, at least some of which were wilful and flagrant, resulted from decisions of the police which either deliberately or recklessly disregarded Ms. Doan’s Charter rights. The evidence establishes bad faith on the part of the police. The severity of the breaches favours exclusion of the evidence.

[97] As to the impact on Ms. Doan of the asserted pattern of individual Charter breaches, counsel argued that the impact was serious. For example, non-compliance with the accused’s s. 10(a) and s. 10(b) Charter rights negatively impacted upon her right against self-incrimination. Unconstitutional obtaining of conscriptive evidence is generally serious. Further, the impact of cumulative breaches of constitutional protections increases the undermining of the interests protected by Ms. Doan’s rights and recommends exclusion of the evidence.

[98] Mr. Giuliana submitted that while society has an interest in adjudication of a criminal allegation on its merits, an interest favouring admission of the evidence, in this case other factors ought to be considered. The offences charged are not among the most serious. The reliability of the house key evidence is suspect considering the factual discrepancies as to whether Ms. Doan had a purse in her hand and the late–reporting of this event by Constable Krause.

[99] Balancing all the circumstances, admission of the evidence would bring the administration of justice into disrepute and therefore ought to be excluded.

[100] Ms. Park submitted that the infringement of Mr. Nguyen’s constitutional rights was serious. There was a pattern of disregard for his rights. The police exhibited a cavalier attitude to Charter rights. There was an ill-advised rush to arrest. It was apparent that the accused was arrested without proper grounds simply to further a criminal investigation. Rights were deliberately ignored or the police recklessly did not adequately communicate Mr. Nguyen’s rights.

[101] The impact of the Charter breaches on Mr. Nguyen was argued to be serious considering that he was unlawfully arrested and handcuffed and his language difficulties disrespected in relation to ensuring he understood his rights.

[102] Counsel submitted that while the remote opener may be real evidence important to the prosecution case, there exist very real questions regarding the reliability of the evidence in particular because of the absence of contemporaneous recording of the event and the manner in which disclosure of the evidence unfolded.

[103] It was submitted that, balancing the relevant lines of inquiry, the admission of the evidence of the garage door opener ought to be excluded as its admission would bring the administration of justice into disrepute.

Position of the Crown

[104] While conceding no breach of the two accused’s Charter rights, Mr. Park submitted that if the court were to be persuaded that breaches had transpired, that none of the relevant evidence ought to be excluded. Any breaches were “technical and fleeting”.

[105] Crown counsel argued that there is no evidence of an intention on the part of the police to breach Charter rights. Constable Krause was unexpectedly confronted with the arrival of the two accused. He reacted to Ms. Doan walking toward the front of the house and then away from him. Any delay in providing s. 10(a) and 10(b) Charter rights was brief. The circumstances relating to eliciting the statement given by Ms. Doan were “at the lower end of seriousness”. Constable Krause was attempting to keep himself safe and to arrest without creating further problems. Once the accused were arrested they were cautioned and informed of their s. 10(b) Charter right including a police attempt to do so in Vietnamese. Any breaches were inadvertent only. Assuming reasonable grounds did not exist to arrest Ms. Doan, reasonable suspicion did exist for an investigative detention.

[106] It was submitted that the impact of any Charter breaches upon Ms. Doan was minimal. Delay in compliance with her rights was minimal. There was only a brief interaction with the police outside the residence. Minimally, grounds existed for investigative detention. Seizure of the house key from a receptacle, not from the person of Ms. Doan, involved only a minimal to moderate intrusion on any reasonable expectation of privacy.

[107] The evidence sought to be excluded by Ms. Doan is important to a prosecution of the charges on the merits. The statement contents represent an effort by the accused, like her conduct of walking away, to distance herself from the dwelling containing the grow-op. The house key amounts to tangible evidence representing Ms. Doan’s access to the residence and in turn control of its contents and, by circumstantial association, Mr. Nguyen’s access and control as a person acting in concert with Ms. Doan. The crimes charged are serious and the circumstances serious considering the size of the cultivation operation and the presence of a hydro bypass representing a risk to public safety.

[108] Balancing relevant interests, exclusion of the evidence would exact too great a toll on the truth-seeking function of a criminal trial and thereby bring the administration of justice into disrepute.

[109] With respect to Mr. Nguyen, Crown counsel repeated similar submissions. Mr. Park argued that any s. 8 Charter breach relating to the garage door opener was inadvertent and involved a minimal intrusion on a reasonable expectation of privacy. Constable Carroll had lawful access to the SUV and simply failed to advert to the evidentiary quality of the remote opener. The opener is real evidence giving rise to an inference that Mr. Nguyen, and Ms. Doan by virtue of acting in concert with him, had access to the grow-op and control of its contents. Balancing the relevant lines of inquiry favours admission of the garage door opener evidence.

Analysis

[110] Although the parties disagreed as to whether the relevant evidence ought to be excluded should the court identify any breach(es) of the Charter, there was little dispute as to the general governing principles:

(1) assuming standing exists to personally assert a violation of a constitutional right, whether it can be said in all the circumstances that evidence “was obtained in a manner” that infringed a Charter right requires a threshold determination of a sufficient nexus, whether a causal connection or unseverable temporal connection, between the breach and the state’s acquisition of the evidence in question: Grant, at para. 131; R. v. Strachan, [1988] 2 S.C.R. 223, at paras. 40, 45-7; R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44; R. v. Lauriente, 2010 BCCA 72, at paras. 35-54

(2) section 24(2) Charter analysis, in the context of all the circumstances of the case, requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to (1) the seriousness of the Charter – infringing state conduct, (2) the impact of the breach on the Charter – protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits

(3) as to the seriousness of the state’s constitutional misconduct:

(a) the gravity of the offending departure from the rule of law may fall within a range of fault from the inadvertent or minor or “understandable mistake” to that which is flagrant, deliberate or in wilful disregard of a Charter-protected right: Grant, at para. 74; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 22-4

(b) the seriousness of a Charter breach may be attenuated by the existence of extenuating or exigent circumstances (Grant, at para. 75) or where the constitutional misconduct of the police was undertaken in good faith – negligent action on the part of the authorities, unreasonable error or ignorance as to scope of authority do not however equate with good faith (Grant, at para. 75; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 99; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59) – an example of good faith may be found in the context of the police acting at a time where the operative law was uncertain, in a state of flux, and prior to articulation of a binding judicial direction: Grant, at para. 133; R. v. Beckles, 2012 ONCA 267, at para. 2; R. v. Jones (2011), 2011 ONCA 632, 107 O.R. (3d) 241 (C.A.), at paras. 83-7; R. v. Kelsy, 2011 ONCA 605, at paras. 65, 70; Perjalian, at para. 27; R. v. Tosczak, 2010 SKCA 10, at para. 14

(c) a Charter violation is more serious where there exists a continuous or systemic disregard of constitutional rights or a cumulative pattern of Charter breaches: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 51; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, at para 7; Lauriente, at paras. 28-30

(4) the second line of inquiry, examining the extent to which an established Charter breach actually undermined interests protected by the right infringed, focuses on where in a range of effects, ranging from fleeting or technical to the profoundly intrusive, the impact fell upon the accused: Grant, at paras. 76-8; Côté, at para. 47

(5) recognizing “society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence” (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 27), the third line of inquiry as to what result would better serve the truth-seeking function of a criminal trial considers the impact of exclusion on the prosecution case, the reliability of the obtained evidence, and the seriousness of the charge(s) before the court: Grant, at paras. 79-84; Côté, at paras. 48, 53-6, 89

(6) in the end, in deciding whether admission of the unconstitutionally obtained evidence would bring the administration of justice into disrepute, in the sense of the effect of admission on the overall repute of the justice system viewed in the long term, the court must then, though not in any precise mathematical way, balance the assessments under each of the three avenues of inquiry: Grant, at paras. 85-6; Côté, at para. 48.

[111] In the present case, the arrests of Ms. Doan and Mr. Nguyen were in violation of their s. 9 Charter right. Because reasonable and probable grounds did not exist to arrest, as opposed to investigatively detain, the arrests were unlawful and arbitrary. On balance, the accused established that their s. 10(a) right to be informed of the reason for their arrest was also breached where the arresting officers made no attempt to promptly discharge their obligation to give such notice. In light of the s. 9 and s. 10(a) violations, the search of Ms. Doan’s purse incident to arrest was unlawful and in breach of s. 8 of the Charter. The same conclusion would follow respecting the seizure and use of the remote garage door opener in the purported incident-to-arrest search of the vehicle occupied by Mr. Nguyen had it been as a result of such a search. In the circumstances however, the warrantless use of the opener by the police was not part of a search incident to arrest and therefore was, from the outset, in breach of Nguyen’s s. 8 Charter right.

[112] Ms. Doan’s s. 10(b) Charter right was breached when, immediately on her detention by Constable Krause, no effort was made to apprise the accused of her right to counsel. No effort was made to do so until she had responded to the officer’s questions.

[113] While it may have been reasonable for a delay to have occurred for the police to use remote interpretation assistance or the use of an interpreter at a police facility, that is not what occurred in this case. There was no holding-off by Constable Krause who questioned Ms. Doan without an interpreter. It cannot, on balance, be said that she understood attempts at the scene to inform her of her Charter rights.

[114] As to Mr. Nguyen’s situation, on the findings of the court, it cannot on balance be said, given his limited English fluency, that he ever received his s. 10(b) right in a manner he could comprehend. That said, no evidence was causally obtained by the police breach, nor by the similar and ongoing breach of Doan’s s. 10(b) right when, in the residence, she too was not provided an interpreter or perhaps given the right to counsel from a validated bilingual document (English/Vietnamese) which also provided for the arrestees to themselves signify in their own language whether they understood (Yes or No) its contents. The s. 10(b) breach in this sense was temporally related to the obtaining of the evidence sought to be excluded and is in any event relevant to the overall approach of the police in this case to Charter rights.

[115] Turning first to the seriousness of the Charter-infringing conduct, Constable Krause could not easily have predicted that he would encounter persons arriving at the 838 Genovese Place during the execution of the search warrant. Accordingly, he was faced with an unexpected event and was compelled to make decisions in a fluid and dynamic situation. While this factor provides context, the police actions were after Mann and Suberu and Nguyen. The constable was of the view that an arrest could be employed to further his investigation. He had a “suspect”. He rushed to arrest. When he commenced the arrest of Ms. Doan, the officer considered Mr. Nguyen and her to be arrestable simply on the basis of their arrival at the residence in the vehicle backed into the driveway. Reasonable and probable grounds did not exist to arrest. He gave no thought to investigative detention. In September 2009, and still in 2012, he thought that a person could be detained without the requirement of immediately giving s. 10(a) and s. 10(b) Charter rights. Neither Constable Rerrie nor Constable Holland had grounds to make arrests. No effort was made to immediately give Mr. Nguyen his s. 10(a) Charter right. This pattern of breaches is serious and is only modestly less so by virtue of there being reasonable suspicion to investigatively detain the two accused.

[116] The impact of the constitutional violations upon Ms. Doan’s Charter-protected rights was serious in terms of the number of breaches and the conscriptive violation of her self-incrimination protections. Arrest of both accused in public view without the grounds to do so amounted to an invasive restriction of liberty. The reasonable expectation of privacy in Ms. Doan’s purse was considerable.

[117] The real evidence, the key and the garage door opener, are non-conscriptive, real evidence – reliable and critical to the prosecution case in the trial of serious charges.

[118] In the balance, the first two lines of inquiry favour exclusion of the evidence, though not the third. On the totality of the circumstances, the admission of the evidence would adversely affect the long-term repute of the justice system and thereby bring the administration of justice into disrepute.

The Merits of the Case

[119] The Crown acknowledged that exclusion of Ms. Doan’s statement to Constable Krause, the officer’s observations of her at the time, the key from her purse, and the evidence of the garage door opener able to open the residence garage door would defeat the prosecution’s ability to prove the charges before the court. Accordingly, the accused would be deserving of a Not Guilty verdict. Be that as it may, the merits of the case, assuming the alternative of admission of this evidence, will also be assessed.

[120] It was an agreed fact, in light of the number of marihuana plants, that whoever was in control of the grow operation was in possession of marihuana for the purpose of trafficking.

[121] In assessing whether the Crown has established guilt beyond a reasonable doubt on the whole of the evidence, these overarching principles merit consideration:

(1) proof of unlawful possession requires the Crown to establish the two distinct elements of knowledge and control (R. v. Robinson, 2009 ONCA 626 at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont. C.A.), at para. 19) – control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.), at paras. 60-1; R. v. Savory (1996), 1996 CanLII 2001 (ON CA), 94 O.A.C. 318 (C.A.), at para. 7 (leave to appeal refused, [2007] 2 S.C.R. xv); R. v. Chalk, supra, at para. 19

(2) in order to prove possession, the prosecution may establish actual or personal possession by an accused or possession as described in s. 4(3)(a)(i)(ii) of the Code, while in other cases, the Crown may seek to prove constructive or attributed possession as defined in s. 4(3)(b) of the Code - "where one of two or more persons, with the knowledge and consent of the rest, has the thing in his custody or possession, it shall be deemed to be in the custody and possession of each of them" – in order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession: R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, at p. 364

(3) liability for possession may of course be established by proof of partyship pursuant to s. 21(1) of the Code: R. v. Piaskoski (1979), 1979 CanLII 2920 (ON CA), 52 C.C.C. (2d) 316 (Ont. C.A.), at p. 318

(4) because it is common for the prosecution to prove possession by circumstantial evidence, possession has been described as “a question of fact capable of proof by inference” (R. v. Caccamo (1975), 1975 CanLII 11 (SCC), 21 C.C.C. (2d) 257 (S.C.C.), at p. 273; R. v. Vu, 2002 BCCA 659, at para. 23) – in crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.), at p. 488 (aff'd 1979 CanLII 31 (SCC), [1979] 2 S.C.R. 15); see also R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 18 (aff'd 2006 SCC 26, [2006] 1 S.C.R. 940); R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.) (QL), at paras. 15-16

(5) circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209 – a trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa et al. (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 35, 42

(6) in order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty (R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4) – inference must be carefully distinguished from conjecture or speculation – at all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence and the trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference sought to be drawn

(7) circumstantial evidence is not to be evaluated piece by piece but rather cumulatively – with circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact's application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, [2011] A.J. No. 42 (C.A.) (QL), at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70

(8) “mere knowledge of the presence of the grow operation in the house does not establish the necessary control” to prove unlawful possession: R. v. Doan, 2011 ONCA 626, at paras. 10-11; R. v. Bui, 2002 BCSC 1903, at para. 12; R. v. Abdel-Malek, [1997] B.C.J. No. 999 (C.A.)(QL), at paras. 14-5

(9) depending on the totality of the circumstances, possession of a key for the building where the grow-op is located can be an important factor relating to the issues of knowledge and control: R. v. Scott (2012), 2012 BCCA 99, 280 C.C.C. (3d) 232 (B.C.C.A.), at paras. 7-9, 94-8 (application for leave to appeal filed, [2012] S.C.C.A. No. 211) (S. had key to one side of shed where grow-op located; S.’s vehicle in shed; S. in possession of receipts for items used for a grow-op); R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at para. 32 (arrival of N. at scene and possession of house key amounting to some evidence justifying order for new trial); R. v. Dinh, 2008 ONCA 62, at paras. 1-2 (D.’s car at house on previous day; on date of arrest, D. in house for 6 hours and in possession of a key for the residence); R. v. Nguyen, 2008 ONCA 149, at paras. 2-4 (N. alone in house with extensive grow-op, with keys to house, and “knee deep in marijuana plants”); Bui, at paras. 7-11 (insufficient evidence where B. in grow-op premises for 5 hours and B. not in possession of house keys); R. v. Egresits, 2002 BCCA 163, at paras. 5-8 (E. one of a number of persons with keys to residence where grow-op found; evidence insufficient to exclude others as person(s) responsible for grow-op); Vu, at paras. 5-6, 9, 23-4 (V. in possession of key to open the only padlock securing barn containing grow-op)

(10) while a fact-finder may not use an accused person's silence to strengthen a case that has not been proven by other evidence, nevertheless, it is permissible to rely on the failure of an accused to testify in concluding that there is no innocent explanation that would refute the evidence establishing guilt (R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 85, 87) – in short, silence may be used to confirm guilt, but not to prove it: Scott, at para. 96

(11) while after-the-fact conduct, as circumstantial evidence, may, depending on the specific factual context, permit an inference that the actions of the accused were undertaken in order to conceal involvement in a particular crime or to evade detection or prosecution for its commission, significant caution is warranted regarding the, at times, highly subjective inferences drawn from such conduct: R. v. White (2011), 2011 SCC 13, 267 C.C.C. (3d) 453 (S.C.C.), at paras. 23, 87; R. v. White (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.), at para. 22.

[122] While recognizing the fact-driven nature of the inquiry relating to knowledge and control, and the limited utility of case-to-case comparisons, the factual circumstances here are nevertheless unique. In most grow-op prosecutions reviewed in the jurisprudence, and coming through this courthouse, surveillance evidence and/or found documents or cultivation paraphernalia circumstantially link the accused to the premises and in turn convincingly contribute to proof of knowledge and control. That is not the case here.

[123] The prosecution case against Ms. Doan includes the following:

(1) the accused arrived at 838 Genovese Place in a vehicle

(2) the vehicle reversed into the driveway and parked with the engine turned off

(3) the accused exited the vehicle and took steps toward the front door of the residence

(4) the home was predominantly set up as a marihuana grow-op

(5) when the accused observed a police officer, she turned and walked away

(6) the accused did not return to the vehicle but walked out into the street

(7) the accused did not immediately comply with the police officer’s order to stop

(8) challenged as to where she was going, the accused defensively said she was going home and that she did not live at the residence or ever go there

(9) in a purse said to belong to the accused was a key which could unlock the front door of the residence

(10) in the vehicle in which the accused arrived, there was a remote garage door opener capable of opening one of the garage doors of the residence.

[124] With respect to Mr. Nguyen, the Crown relied on the following evidence to circumstantially found liability:

(1) the accused drove a vehicle to the residence

(2) he reversed the vehicle into the driveway and shut off the engine

(3) the residence was predominantly set up as a marihuana grow-op

(4) in the vehicle was a remote garage door opener capable of opening one of the home’s garage doors

(5) the accused was in the company of, and waited for, a person he drove to the residence who walked toward the front door of the home with a key to that door.

[125] On this body of evidence, the prosecution maintained that the only rational conclusion is that the two accused, acting in concert, had knowledge and control of the cultivation operation together with criminal responsibility for theft through use of the installed hydro bypass.

[126] The above-described evidence against Ms. Doan must of course be assessed in the broad context of all the circumstances including those which might defeat the drawing of inferences sought by the Crown or weaken the strength of any such inferences:

(1) there was no evidence that Ms. Doan ever attended 838 Genovese Place prior to September 11, 2009 or that she was the owner or a lessee of the premises which someone else may have occupied given the food in the kitchen, the entertainment and computer equipment, the bed, et cetera

(2) with the neighbour informant not testifying, there was no admissible evidence on the issue of guilt/innocence that a green van or SUV had ever previously attended the address or that someone else was not residing there

(3) the accused had only been at the scene under a minute, and had not entered the home or its garage, when Constable Krause initiated an arrest

(4) with Mr. Nguyen not exiting the vehicle when Ms. Doan did, it is not apparent that the two planned to remain for a time period consistent with going into the residence to undertake the labour-intensive plant-tending function described by Constable Holland

(5) in the absence of any note by Constable Krause that the accused was looking in her purse as she walked toward the front door, given Constable Rerrie’s evidence that the accused had nothing in her hands, the lack of evidence as to who seized the purse, and given the apparent failure to preserve the key, a trier must be circumspect as to the weight to be afforded the “key” evidence

(6) in any event, assuming the accused to have been in possession of a key to the residence, and while one may not speculate that Ms. Doan may have been present to vacuum the main floor of the house, to leave money inside the front door, to turn on the air conditioner as directed, to leave the key in the post box or under the door mat, et cetera, it nevertheless cannot be said that her attendance was not equally consistent with an ordinary and lawful purpose

(7) the police discovered no documents in the search of the residence to suggest that the accused had a connection to the premises in the sense of residing there or paying utilities or other charges

(8) there is no evidence that the accused’s fingerprints were discovered in the residence suggestive of any prior attendance

(9) it seems that no attempt was made to compare the accused’s handwriting to the growing chart on the upper floor

(10) as a visible minority person startled by the appearance of a physically imposing police officer, one who spoke to her in a language in which she was not fluent, the accused walked away from confrontation with authority – as well, Constable Krause’s notes of the conversation were not contemporaneously made

(11) given the lack of evidence as to the accused’s residential address, her reference to going “home” cannot be said to be false as she may have been a neighbour living across the street.

[127] Turning to Mr. Nguyen, the following features of the evidence must be considered:

(1) there is no evidence that the accused ever attended 838 Genovese Place prior to September 11, 2009 or that he was an owner or lessee of the premises

(2) there is no admissible evidence that the Nissan Pathfinder or a vehicle generally meeting the description of that vehicle had ever been at the residence

(3) there is no evidence of a pre-existing relationship between him and Doan

(4) in the absence of vehicle registration evidence, it is unknown who owned the SUV driven by the accused

(5) in turn, it cannot be said that the accused owned, or had ever operated, the remote garage door opener

(6) on September 11, 2009, the accused did not operate the opener

(7) the accused did not exit the vehicle and made no attempt to drive off when a police officer first became visible

(8) no documents were discovered in the residence suggestive of a connection of the accused to the residence

(9) there is no evidence that the accused’s fingerprints were in the residence

(10) it appears that no attempt was made to compare any of the accused’s handwriting to the growing chart found on the second floor of the residence.

[128] While admittedly the case against Ms. Doan may be said to be stronger than the state of proof regarding Mr. Nguyen, in all the circumstances the inference that she had knowledge and control of the grow-op is not sufficiently compelling to be the only rational or reasonable inference available on the totality of the evidence – very suspicious yes, but not proof beyond a reasonable doubt. The evidence against Mr. Nguyen demonstrably falls short of proof beyond a reasonable doubt.

CONCLUSION

[129] Both accused are found Not Guilty of all charges in the indictment.

Hill J.

Released: June 28, 2012